Punjab-Haryana High Court
Narinder Singh And Another vs State Of Haryana on 11 May, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl. Appeal No. 888-DB of 2006 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
*****
Crl. Appeal No. 888-DB of 2006
Date of decision : May 11, 2010
*****
Narinder Singh and another
............appellants
Versus
State of Haryana
...........respondent
*****
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
*****
Present: Mrs. Baljit Kaur Mann, Advocate for the appellants.
Mr. S.S Randhawa, Additional Advocate General,
Haryana.
*****
JORA SINGH, J.
Narinder Singh son of Gurdev Singh and his wife Rupinder Kaur preferred this appeal to impugn the judgment of conviction dated 14.11.2006 and order of sentence dated 17.11.2006 passed by Additional Sessions Judge, Yamuna Nagar in Sessions Case No. 73 of 2004 arising out of FIR No.145 dated 7.10.2003 under Sections 302, 201, 202, 34 IPC, Police Station Bilaspur. By the said judgment, they were convicted under Sections 302, 201/34 IPC and sentenced as under:
Crl. Appeal No. 888-DB of 2006 [2]
Under Sections Sentence 302/34 IPC Imprisonment for life each. Fine of Rs.5000/- each. In default of payment of fine, rigorous imprisonment for a period of six months each 201/34 IPC Rigorous imprisonment for a period of five years each. Fine of Rs.2000/- each. In default of payment of fine, further rigorous imprisonment for a period of 2 months each.
Sentences awarded were ordered to run concurrently. Sapinder Singh, Satnam Singh and Sukhdev Singh were acquitted of the charge levelled against them. Against their acquittal, no appeal was filed by the State.
Prosecution story, in brief, is that on 7.10.2003, Salamudeen, complainant resident of Village Nagli at about 6:00/7:00 a.m while present in his house, received information from the villagers that a dead body is lying in the river passing by the side of village Nagli. On receipt of information, Salamudeen had gone to the spot then noticed a dead body of a male with injuries on his person. Marks of tractor tyres near the dead body from the side of village Bhagwanpur were also noticed. On telephone, intimation was given to the police. Then SHO, Police Station Bilaspur came to the spot. Then statement of Salamudeen Ex. PN was recorded. After recording statement, endorsement was made at 1:50 p.m and statement was sent to the police station, on the basis of which, formal FIR No.145 dated 7.10.2003 was recorded at 2:20 p.m. Inquest report Ex.PD was prepared. Rough site plan with correct marginal notes was prepared. Marks of tractor tyres were Crl. Appeal No. 888-DB of 2006 [3] noticed and after following the marks of the tractor tyres from a distance of half kilometer, a polythene bag smeared with blood was recovered and the same was made into a sealed parcel and taken into police possession. Dead body was sent to hospital for post mortem examination. On 9.10.2003, Narinder Singh was arrested. Narinder Singh, on interrogation, suffered disclosure statement Ex.PS, and in pursuance of the disclosure statement got recovered the blade of gandasi Ex.P1 from the specified place. Sketch of the blade was prepared. Weapon was sealed and sealed parcel was taken into police possession. Tractor no. HR-02-J-1939 was also got recovered and was taken into police possession vide separate memo Ex.PV attested by the witnesses. Blood stained earth was also got recovered and was made into a sealed parcel and was taken into police possession.
On 10.10.2003, investigation of the case was entrusted to SI, Mewa Ram. On 11.10.2003, he had interrogated Narinder Singh. Narinder Singh again suffered disclosure statement Ex.PL and got recovered knife Ex.P-2. Rupinder Kaur was also arrested and was interrogated. Rupinder Kaur suffered disclosure statement Ex.PH and in pursuance of the disclosure statement got recovered the clothes worn by her at the time of commission of the crime. Shirt, Salwar and chunni which were recovered in pursuance of the disclosure statement Ex.PH were made into a sealed parcel. Parcel was taken into police possession vide memo attested by the witnesses.
After the completion of investigation, challan was Crl. Appeal No. 888-DB of 2006 [4] presented.
Accused were charged for the offences punishable under Sections302,201/34. Accused did not plead guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses:
PW-1, ASI, Krishan Chand had recorded formal FIR Ex.PA on receipt of ruqa dated 7.10.2003.
PW-2, Dr. Sarita Gulati was the member of the Board and on 8.10.2003, Medical Board had conducted post mortem examination on the dead body of Gulab Singh and it was observed as under:
1. An incised wound 17 cm x 4.5 cm was present along the lower border of mandible extending from angle of mandible on left side and crossing the mid line extending on right side up to 4.5 cm. It was 10 cm deep underlying muscle and trachea were cut through and through.
2. Another incised wound 2.5 cm. below injury no.1 was present. It was 10 cm x 2.5 cm irregular in shape. 4 cm deep underlying thyroid cartilage, vessels and muscle were cut.
3. Incised wound on left side of medial aspect of clavicle 2.5 cm x 1.5 cm x 1.5 cm was present. Underlying muscles were cut.
4. Abrasion over four head on left side 2 cm x 1 cm.
5. Abrasion on the front of chest on left side 5 cm x 3.5 Crl. Appeal No. 888-DB of 2006 [5] cm below injury no.2.
6. Abrasion on left shoulder 10 cm x 1 cm.
7. Contusion mark was present on left cheek.
8. Abrasions in the lumber region on outer aspect of hip bones both sides 3 cm x 1.5 cm.
9. Abrasions in upper part of thigh right side 3 cm x 2 cm
10.Abrasion in upper part left leg at the level of knee.
11.Abrasion in upper part of right lower leg 1.5 cm x 2 cm and at the level of knee 1 cm x 0.5 cm was present.
12.Penis was chopped off from the base. Testicles and scrotum were missing from its place. Incised wound irregular in shape was present at the base of penis 7 cm x 5.5 cm.
Cause of death was due to shock and haemorrhage. All injuries were found to be ante mortem in nature and were sufficient to cause death. Probable duration that elapsed between injury and death was instantaneous and the duration between death and post mortem was within 24 to 48 hours.
PW-3, Head Constable, Shamsher Singh tendered his affidavit Ex.PE.
PW-4, Hakam Singh stated that on 6.10.2003 at about 8:00 p.m, he was present at the bus stand of village Musimbalpur. Gulab Singh and his cousin Bhupinder Singh came to him. Gulab Singh told him that some money is due from Narinder Singh. He was requested to accompany them to Village Ranjitpura. He refused to accompany them. In the meantime, Avtar Singh came. Then Gulab Crl. Appeal No. 888-DB of 2006 [6] Singh requested Avtar Singh to accompany them to the house of Narinder Singh. Gulab Singh stated that they will return on the same night. Then he and Avtar Singh agreed to accompany Gulab Singh. They had gone to house of Narinder Singh on a motorcycle. Bhupinder left for his house from the bus stand. In the house of Narinder Singh, they had taken liquor and later on dinner. After dinner, Gulab Singh requested them to return. He along with Avtar Singh came back on the motorcycle. Next day in the morning, he tried to contact Gulab Singh on his mobile phone but mobile phone was found switched off. After that he tired to contact Gulab Singh at his residence but reply was that Gulab Singh had not returned. After sometime, Avtar Singh came then he along with Avtar Singh had gone to the house of Narinder Singh to know about the whereabouts of Gulab Singh. Wife of Narinder Singh replied that Gulab Singh had left the house after 10 minutes of their leaving on the last night. Thereafter, they came to know that dead body of a person was recovered from the canal within the area of village Bhagwanpura. After reaching the place where dead body was lying, the dead body was found to be of Gulab Singh PW-Krishan Kumar had delivered Special Report to the Illaqa Magistrate on 4:00 p.m. PW-6, Kashmiri Lal Patwari had prepared scaled site plan Ex.PF.
PW-7, Naib Singh Patwari had prepared scaled site plan Ex.PG.
PW-8, Subhash, Photographer had taken the Crl. Appeal No. 888-DB of 2006 [7] photographs of the scene of crime on 7.10.2003. Photographs are Ex.P-9 to Ex.P-16 and the negatives of these photographs are Ex.P- 17 to Ex.P-24.
PW-9, Bhupinder Singh stated that on 6.10.2003 at 7:00 p.m, he along with Avtar Singh had gone to the house Gulab Singh. After that he along with Gulab Singh and Avtar Singh had gone to Village Musimbalpur on two motorcycles. Near the bus stand of Musimbalpur, Hakam Singh met them. Gulab Singh requested them to accompany them to the house of Narinder Singh. He came back to his house on the motorcycle of Avtar Singh. Hakam Singh, Avtar Singh and Gulab Singh had gone to the house of Narinder Singh on another motorcycle. On 7.10.2003, telephone was received from the house of Gulab Singh to enquire about Gulab Singh. Then he contacted Hakam Singh and Avtar Singh on telephone and enquired about the whereabouts of Gulab Singh. After that, he had gone to the house of Narinder Singh, but Narinder Singh replied that Gulab Singh had left the house 10 minutes after the departure of Avtar Singh and Hakam Singh. Later on dead body of Gulab Singh was recovered from the Som River. On 11.10.2003, Narinder Singh was interrogated. Then he along with police party and Narinder Singh had gone to the house of Narinder Singh and effected some recovery. Rupinder Kaur was also interrogated. In pursuance of the disclosure statement got recovered her shirt Ex.P-25, Salwar, Ex.P- 26 and Chunni Ex.P-27 and the same were taken into police possession vide memo Ex.PJ.
PW-10, Constable Nar Singh tendered his affidavit Crl. Appeal No. 888-DB of 2006 [8] Ex.PK.
PW-11, Darbara Singh stated that after 5-6 days of the death of Gulab Singh, he and Bhupinder Singh visited CIA Yamuna Nagar. Narinder Singh suffered disclosure statement in their presence and in pursuance of the disclosure statement got recovered knife Ex.P-2 from the specified place.
PW-12, Salamudeen stated that some boys came to his house and reported that a dead body is lying in the river passing by the side of his village. He had gone to the spot. Intimation was given to the police and his statement Ex.PN was recorded.
PW-13, Bawa Singh, brother of the deceased stated that on 6.10.2003 at 4:00 p.m, Gulab Singh along with Bhupinder Singh and Avtar Singh had gone to village Musimbalpur but failed to return. Next day he had enquired about Gulab Singh from Avtar Singh. Avtar Singh replied that he (Avtar Singh) along with Hakam Singh and Gulab Singh had gone to the house of Narinder Singh. Gulab Singh stayed at the house of Narinder Singh and they came back, after that he along with Bhupinder Singh, Balbir Singh Sarpanch and Surender Singh had gone to the house of Narinder Singh. Narinder Singh replied that Gulab Singh had left the house 10 minutes after the departure of Hakam Singh and Avtar Singh. When they were in search of Gulab Singh, then came to know about the recovery of a dead body from Som river near Village Nagli. They had gone there and the dead body was found to be of Gulab Singh.
PW-14, Head Constable Gurmail Singh stated that on 9.10.2003, Narinder Singh was interrogated and in his presence, he Crl. Appeal No. 888-DB of 2006 [9] suffered disclosure statement Ex.PS and in pursuance of the disclosure statement got recovered gandasi Ex.P1 which was taken into police possession. A tractor and blood stained earth was also got recovered in pursuance of the disclosure statement and the same were taken into police possession vide separate memos.
PW-15, Sub Inspector, Fateh Singh had recorded the statements of the witnesses under Section 161 Cr.P.C and submitted final report under Section 173 Cr.P.C.
PW-16, Gian Singh, Sub Inspector is the Investigating Officer.
PW-17, Mewa Ram, Sub Inspector on 11.10.2003 had interrogated Narinder Singh and in pursuance of the disclosure statement Ex.PL had affected recovery of knife Ex.P-2. On the same day, Rupinder Kaur was also interrogated and in pursuance of the disclosure statement, she got recovered her shirt, salwar and chunni.
After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the appellants-accused was that they are innocent. They have been falsely implicated in the case. They had neither suffered the disclosure statements nor any recovery was got effected from them.
In defence, DW-1, Amar Pal appeared and stated that he is the Sarpanch of his viilage Ranipur. Dera of Narinder Singh is in the fields. Accused had the residence at Village Ranipur. They are not the residents of Village Ranjitpura. He was not called by the Crl. Appeal No. 888-DB of 2006 [10] police in connection with investigation of this case.
After hearing learned Public Prosecutor for the State, learned defence counsel for the accused and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid.
We have heard the learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file.
Learned counsel for the appellants argued that in the present case there is no eye witness. Case is based on circumstantial evidence and the only circumstance to connect the appellants with the crime is the evidence of last seen and recovery of weapons i.e gandasa and knife and the clothes worn by Rupinder Kaur. There is bald statement of Hakam Singh qua last seen but statement of Hakam Singh without corroboration inspires no confidence. Second witness of last seen was Avtar Singh but he was not examined. Recovery of gandasa and knife was from open place accessible to all and sundry. No independent witness was joined at the time of affecting recoveries as per disclosure statements. Darbara Singh was with the police party when recovery of knife was effected but Darbara Singh is the maternal uncle of the deceased. He was very much interested in the success of this case. No blood was noticed on the blade of gandasa. Blood was noticed on the knife but the same was found to be disintegrated. In pursuance of the disclosure statements suffered by Rupinder Kaur, shirt, salwar and chunni were recovered but there is no report of the Laboratory that Crl. Appeal No. 888-DB of 2006 [11] blood group noticed on the knife and clothes was matching. As per prosecution version, the motive to commit the crime was that some amount was due from the appellants. But no cogent or convincing evidence is on the file to show as how much amount was due. Whether any article or land was sold to the appellants and if any article or land was sold then there is no document on the file to show that so much amount was due from the appellants. Motive to commit crime as per disclosure statement before the police is without any evidentiary value because the disclosure statement before the police officer is admissible qua recovery part only. Confessional statement before the police is not legally admissible. If allegation of the prosecution is that deceased had illicit relation with Rupinder Kaur then Rupinder Kaur had no motive to commit the crime. Prosecution failed to pin point whether murder was in the house of appellants or near the place from where the polythene bag was recovered or from the specified place opposite to the place of recovery of dead body from where blood stained earth was lifted.
Learned State counsel argued that some amount was due from the appellants and for that purpose deceased along with Avtar Singh and Hakam Singh had gone to the house of the appellants. Hakam Singh and Avtar Singh came back from the house of the appellants at about 10:00/11:00 p.m. Gulab Singh remained in the house of Narinder Singh. Next morning at about 6:30/7:00 a.m, dead body was noticed by Salamudeen. In view of the statement of Salamudeen Ex.PN, formal FIR was recorded at 2:20 p.m. When inquest report was being prepared then dead body Crl. Appeal No. 888-DB of 2006 [12] was identified by Bawa Singh and Bhupinder singh. Name of Hakam Singh figured in the statements of Bhupinder Singh and Bawa Singh. On 7.10.2003, dead body was sent for post mortem examination at about 7:00 p.m and on the next date at about 8:00 a.m post mortem examination was conducted. Twelve injuries were noticed on the person of the deceased. Some of the injuries were incised wounds. Some of the injuries were abrasions and one injury was contusion. Nature of injuries shows that crime cannot be committed by one person. After committing the crime, dead body was thrown in the river. Tyre marks were noticed and this fact came in the statement of Salamudeen recorded at 1:15 p.m. In pursuance of disclosure statement, tractor of Satnam Singh, who was one of the accused acquitted by the trial Court, was recovered from the house of co- accused, namely Sukhdev Singh. Sukhdev Singh was also acquitted. Recovery of blood stained clothes in pursuance of the disclosure statement suffered by Rupinder Kaur shows that she has also participated in the commission of crime. Evidence on the file was rightly scrutinised.
Undisputedly, case is based on circumstantial evidence. There is no eye witness. When the case is based on circumstantial evidence then motive assumes more significance. But if no cogent and convincing evidence on the file qua motive then on this short ground, story is not to be ignored. As per statement of Hakam Singh and Bhupinder Singh, money was due from the appellants and for that purpose they were requested by the deceased to accompany him to the house of the appellants. No doubt Hakam Singh and Crl. Appeal No. 888-DB of 2006 [13] Bhupinder Singh were not in a position to tell as to how much amount was due and whether any article or land was purchased by the appellants from him, but one thing is clear that Hakam Singh was friend of the deceased. Bhupinder Singh was the cousin of the deceased and to effect recovery of amount due, deceased had requested Hakam Singh and Bhupinder Singh to accompany him to the house of the appellants. Hakam Singh stated that he along with deceased and Avtar Singh had gone to the house of the accused at about 8:30 p.m. After that they had taken liquor and dinner with Narinder Singh. Wife and children of Narinder Singh were also present there. After dinner, Hakam Singh and Avtar Singh came back leaving Gulab Singh deceased in the house of the appellants. No suggestion was put to the witnesses that on 6.10.2003, Gulab Singh, Hakam Singh and Avtar Singh had not visited the house of the appellants or the story regarding liquor and dinner is concocted one. Suggestion was given to Hakam Singh that he along with Gulab Singh, Avtar Singh and Bhupinder Singh used to go for hunting together and had developed illicit relations with different ladies. Second suggestion given was that they had illicit relations with a girl of village Bhagwanpur. Gulab Singh, Hakam Singh and Bhupinder Singh seem to be unmarried and developed illicit relations with Rupinder Kaur. As per copy of the post mortem report, private part of the deceased was found chopped of. Number of injuries were noticed with different weapons. Motive to visit the house of the appellants to affect recovery or with ulterior motive to carry on illicit relation cannot be ruled out. If deceased or Hakam Singh had no Crl. Appeal No. 888-DB of 2006 [14] motive to visit the house of the appellants then the question is why the appellants were named. Appellants when examined under Section 313 Cr.P.C then they did not state that deceased was inimical towards them and to seek revenge they were falsely implicated. Deceased was the resident of Chhaju Nagla. whereas appellants are the residents of Ranjitpura. Why the appellants were chosen for false implication. So if we presume that evidence on the file is not cogent and convincing qua motive then story is not to be ignored on this ground alone.
Next circumstance to connect the appellants with the crime is statement of Hakam Singh who is the witness of last seen. Avtar Singh and Bhupinder Singh were the cousins of the deceased. Deceased along with Avtar Singh and Bhupinder Singh on a vehicle had gone to village Musambilpur. Hakam Singh resident of Chotti Pabni had met them in village Musambilpur. From there, Bhupinder Singh on a vehicle had returned to his house. Gulab Singh along with Hakam Singh and Avtar Singh had gone to the house of the appellants. Hakam Singh when appeared in the Court then supported the prosecution story by saying that on 6.10.2003 at 8:00 p.m, he was present near the Bus Stand in Village Musambilpur. Gulab Singh along with Bhupinder Singh and Avtar Singh came there. He was requested to accompany them to the house of the appellants. Initially, he had shown his inability to accompany them. But later on he had accompanied Gulab Singh to visit the house of appellants. From Village Musambilpur, Bhupinder Singh had returned to his house. He along with Gulab Singh and Avtar Singh had gone Crl. Appeal No. 888-DB of 2006 [15] to the house of the appellants. At about 8:30 p.m, they reached there. Narinder Singh with his wife and children was present in his house. They had consumed liquor with Narinder Singh. After dinner, he along with Avtar Singh came back. Gulab Singh had stayed in the house of Narinder Singh. Next day, on telephone he had enquired about Gulab Singh but there was no response. Then Avtar Singh came and thereafter they had gone to the house of Narinder Singh but reply by Narinder Singh was that 10 minutes after their departure, Gulab Singh had left the house. Hakam Singh was the friend of Gulab Singh. As per suggestion, he along with Gulab Singh and Bhuinder Singh used to go for hunting together and developed illicit relations with different ladies. Hakam Singh being friend of Gulab Singh rightly accompanied him to the house of the appellants. No suggestion was given to Hakam Singh that at about 8:00-9:00 p.m on 6.10.2003, he along with Gulab Singh and Bhupinder Singh had not visited the house of the appellants. Secondly, they had not taken liquor with Narinder Singh and after that had not taken dinner and after dinner they had not left the house by leaving Gulab Singh in the house of the appellants. Hakam Singh stated that on the next day on telephone he tried to contact Gulab Singh but there was no response. No record from the telephone department was produced to show as to whether Hakam Singh on telephone tried to contact Gulab Singh or not. But in the absence of record from the telephone Department, statement of Hakam Singh is not to be ignored because he was the friend of the deceased. He had no enmity with the appellants. Without enmity with the appellants, Hakam Singh had no Crl. Appeal No. 888-DB of 2006 [16] reason to depose against the appellants.
On 7.10.2003, in the morning at 6;30/7:00 a.m, Salamudeen came to know about the dead body lying in the river. On telephone he had informed the police. Police came to the spot and statement of Salamudeen Ex.PN was recorded at 1:15 p.m. Tyre marks were also noticed near the place from where the dead body was recovered. After recording the statement of Salamudeen, inquest report was prepared but when inquest report was being prepared then Bawa Singh and Bhupinder Singh came to the spot. Their statements were recorded. In the statement of Bhupinder Singh, name of Hakam Singh figured. After preparing the inquest report, dead body was sent to hospital for post mortem examination. At 8:30 p.m, body was received in the hospital and this fact is clear from the copy of the post mortem report. Along with request for post mortem examination, statements of the witnesses namely Bawa Singh and Bhupinder Singh were also sent. All the papers sent along with inquest report were initialled by the doctor. Bhupinder Singh while appearing as PW-9 stated that he along with Avtar Singh and Gulab Singh while going to the house of appellants were near the bus stand of village Musimbalpur where Hakam Singh met them. After that, he had gone to his village on the motorcycle of Avtar Singh. Gulab Singh, Avtar Singh and Hakam Singh had gone to the house of the appellants. Bhupinder Singh, PW-9 is the cousin of the deceased. But he had accompanied the deceased up to the bus stand of village Musambilpur. From village Musambilpur, deceased along with Hakam Singh and Avtar Singh had gone to the house of Crl. Appeal No. 888-DB of 2006 [17] the appellants. Statement of Bhupinder Singh was recorded on 11.10.2003 but he has not stated that he had left the deceased in the house of the appellants. If story was to be concocted then Bhupinder Singh could easily state that he had also gone with the deceased to the house of the appellants and came back along with Avtar Singh and Hakam Singh while leaving Gulab Singh in the house of the appellants. He, rather stated that from the bus stand of village Musambilpur, he came back to his village on the motorcycle of Avtar Singh. Avtar Singh, Hakam Singh along with Gulab Singh had went ahead. So statement of Bhupinder Singh being related to the deceased is not to be ignored. Because he had disclosed about the story to the Investigating Officer when inquest report was being prepared. Investigating Officer when started to prepare inquest report at that time dead body was not identifiable but when the inquest report was being prepared then Bawa Singh, Bhupinder Singh and some other persons came to the spot. Statement of Bawa Singh and Bhupinder Singh were recorded under Section 175 Cr.P.C. In State of Goa vs. Sanjay Thakran and another, 2007(2) RCR (Criminal), 458, Hon'ble Supreme Court held that it is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.
In State of Punjab vs. Balbir Singh and others, 2004 (4) RCR (Criminal) 999, it was held that circumstances should be of such conclusive nature as to exclude every other possibility except Crl. Appeal No. 888-DB of 2006 [18] the accused being guilty of the charged offence.
In Dasari Siva Prasad Reddy vs. The Public Prosecutor, High Court of A.P, 2004(4) RCR (Criminal) 106, it was held as under in paras no. 22 and 23 of the judgment as under:
" 22. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3's evidence which was believed by the trial Court, the appellant contacted him in the morning at 6 a.m. and brought PW3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal.
23. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the Crl. Appeal No. 888-DB of 2006 [19] prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court."
In Madhumoy Madhusudam Boul vs. State of West Bengal, 1992, SCC (Crl.) 909, it was observed in para no.3 of the order as under:
"The circumstances relied upon by the courts below are firstly that the accused was ill- treating the deceased and secondly that on the fateful night the accused came in the truck and took the deceased and thereafter only the dead body Crl. Appeal No. 888-DB of 2006 [20] was found in the jungle. The medical evidence is relied upon to show that it was an unnatural death and was due to violence. As far as the complicity of the accused is concerned, the courts below relied on the evidence of PW-18. If the evidence of PW- 18, the sole eye-witness is found to be unreliable, as contended by the learned counsel, then we are left only with one incriminating circumstance namely that the deceased and the accused went together in the truck that is to say she was last seen in the company of the accused. This circumstance by itself cannot bring home the guilt to the accused."
We have gone through the above cited authorities but we are of the opinion that facts of the present case differ from the facts of the above cited authority. In the present case at about 8:30-9:00 p.m, Gulab Singh deceased was at the house of the appellants along with Hakam Singh and Avtar Singh. As per Hakam Singh, PW- 4, he, Gulab Singh and Avtar Singh had taken liquor and dinner at the house of the appellants. According to the post mortem report, semi digestive food was noticed and death was on the intervening night of 6-7/10/2003 i.e after 10:30 p.m because after spending 75 minutes, Hakam Singh and Avtar Singh came back from the house of the appellants. Probable time that elapsed between injuries and death was instantaneous and death and post mortem was within 28 hours to 48 hours. That means death was after 12:30 p.m on 7.10.2003. On 7.10.2003 at about 6:30/7:00 a.m, Salamudeen Crl. Appeal No. 888-DB of 2006 [21] resident of Nagli came to know about the dead body. After receiving intimation about the dead body, police party headed by Gian Singh, Sub Inspector came to the spot. Statement of Salamudeen Ex.PN was recorded at 1:30 p.m. When police officials started to prepare the inquest report, then no one present on the spot had identified the dead body. But at about 2:50 p.m on 7.10.2003, Bawa Singh and Bhupinder Singh came. At that time inquest report was being prepared. They had identified the dead body of Gulab Singh. Statement of Bawa Singh and Bhupinder Singh was recorded. In the statement of Bhupinder Singh, name of Hakam Singh, PW-4 figured. Hakam Singh was also present but his statement was not recorded under Section 175 Cr.P.C. Statement of Hakam Singh was recorded on 10.10.2003 and of Bhupinder Singh on 11.10.2003 under Section 161 Cr.P.C. On 9.10.2003, Narinder Singh appellant was arrested. In pursuance of the disclosure statement Ex.PS dated 9.10.2003, gandasi Ex.P-1 and tractor were recovered. During the interrogation of Narinder Singh, name of Rupinder Kaur figured. On 10.10.2003, investigation of the case was with CIA Staff. Mewa Ram Inspector had interrogated Narinder Singh and in pursuance of the disclosure statement Ex.PL dated 11.10.2003, knife Ex.P-2 was recovered. Knife was found to be stained with blood as per report of the laboratory. As per Ex.PO, blood on the gandasi Ex.P-5 could not be detected because handle of the gandasi was burnt.
On 11.10.2003, Rupinder Kaur was arrested and in pursuance of her disclosure statement, Ex.PH, she got recovered her shirt Ex.P-25, Salwar Ex.P-26 and Chunni Ex.p-27. According to the Crl. Appeal No. 888-DB of 2006 [22] report, Ex.PO, traces of blood too small for serological tests were detected because clothes were washed. At the time of preparation of inquest report, statement of Hakam Singh was not recorded because he had not met the Investigating Officer. Gian Singh, Investigating Officer stated that on 7.10.2003 either on the spot or even in the hospital, Hakam Singh had not met him. At the time of preparation of inquest report, number of persons were present. Investigating Officer had no information as to who had last time seen the deceased in the house of the appellants. Hakam Singh was not known to the Investigating Officer. So failure to record the statement of Hakam Singh on 7.10.2003 or 8.10.2003 is not fatal. Because in view of the statements under Section 175 Cr.P.C of Bawa Singh and Bhupinder Singh, while preparing inquest report, Investigating Officer came to know that last time deceased had gone to the house of Narinder Singh, appellant.
After inspecting the spot, Gian Singh, Sub Inspector noticed tractor tyre marks and while following the tractor tyre marks from a distance of half kilometer, polythene bag stained with blood Ex.P-28 was recovered and human blood was noticed on the polythene bag. Towards second side, tyre marks were followed and at a distance of one kilometer blood was noticed. Blood stained earth was lifted and as per report of the laboratory, earth was found to be stained with blood. Blood was not noticed in the house of the appellants,. So failure to lift earth allegedly stained with blood from the house of the appellants is not fatal. At the time of recovery of gandasa, Ex.P-1 and tractor no independent witness was with the Crl. Appeal No. 888-DB of 2006 [23] party but the recovery witnesses and the Investigating Officer did not state that independent witnesses were present and no one was requested to join the party. When independent witnesses are present and no one is joined then due to non-joining of independent witnesses while affecting recovery, story is not to be ignored. But evidence on the file is to be scrutinised with great care and caution as to whether recovery is genuine one or not. At the time of recovery of knife, Darbara Singh, maternal uncle of the deceased was present. If weapon was to be planted then in stead of Darbara Singh any other witness could easily be shown as witness of recovery. In the case of murder or a serious crime, nobody comes forward to support the prosecution story. Only the relations or friends come forward to depose in the Court. As discussed earlier, deceased party had no enmity with the appellants. Darbara Singh, deceased and the appellants are from different villages. Police had no enmity with the appellants. So there was no reason to plant any weapon.
Next submission of the learned counsel for the appellants was that there is recovery of weapons, clothes, earth and polythene bag but no report of the Serologist about the blood group. When evidence of last seen is week type of evidence then on the basis of mere recoveries in the absence of report of the Serologist about the blood group, then not safe to opine that the appellants are the only persons who had committed the crime. After recovery of the dead body on 7.10.2003, post mortem examination was conducted on the next day on 8.10.2003. Clothes worn by the deceased were taken into police possession. On 7.10.2003, from a distance of ½ Crl. Appeal No. 888-DB of 2006 [24] kilometer of the place of recovery of dead body, one polythene bag was recovered and from a distance of about one kilometer, blood stained earth was noticed. Tractor was recovered on 10.10.2003 and knife on 11.10.2003. Clothes worn by the appellant, Rupinder Kaur were also recovered on 11.10.2003. Blood was noticed on all these articles but no report of the serologist regarding the blood group. In case of clothes worn by the deceased, blood was found to be disintegrated. In case of blood noticed on the tractor and polythene sheet, human blood was noticed. Blood on the clothes worn by the deceased was found to be disintegrated then in the absence of the report of the serologist regarding the blood group, story is not to be doubted when evidence of last seen inspires confidence. At about 10:30 p.m on 6.10.2003, Hakam Singh and Avtar Singh came back from the house of the appellants leaving Gulab Singh there. On the next date at about 6:30/7:00 a.m, dead body was noticed in the river. Semi digestive food was noticed in the stomach. So possibility of death after 10:30 p.m and before 6:00 am cannot be ruled out. No case of the prosecution that during day time in the morning, deceased was seen in the company of the accused and the dead body was recovered in the evening. When there is a gap of 6-7 hours then there is possibility that deceased might have met somebody else other than the accused party but in the present case at about 10:30 p.m during night time deceased was in the company of the appellants. No suggestion to Hakam Singh or Bhupinder Singh and Bawa Singh that on 6.10.2003, Gulab Singh had not visited the house of the appellants and had not taken liquor Crl. Appeal No. 888-DB of 2006 [25] and dinner there. No suggestion that on 7.10.2003, Bawa Singh, Bhupinder Singh, Hakam Singh had not reached the house of the appellants to enquire about Gulab Singh. Witnesses categorically stated that on 6.10.2003, Gulab Singh with Hakam Singh and Avtar Singh had gone to the house of the appellants. After dinner, Hakam Singh and Avtar Singh came back. Gulab Singh stayed with the appellants when Gulab Singh failed to return then on 7.10.2003, Bhupinder Singh, Avtar Singh and Hakam Singh had gone to the house of the appellants. But appellants replied that Gulab Singh had left after 10 minutes of their departure. Appellants when examined under Section 313 Cr.P.C then simply stated that they are innocent. They did not suffer disclosure statements and no recoveries were effected from them. This shows that the statements of Bawa Singh and Bhupinder Singh inspire confidence qua last seen and the whereabouts of Gulab Singh.
Post mortem examination was conducted by Dr. Sarita Gulati. Twelve injuries were noticed on the person of the deceased. Out of 12 injuries, there were three incised wounds, one contusion and seven abrasions on different parts of the body. Injury no.12 was that penis was chopped off from the base. Testicles and scrotum were missing from its place. Nature of injuries shows that murder can not be by one person. At least there is participation of two persons. Last time deceased was in the house of the appellants. At that time, both the appellants were present there. Tyre marks were noticed near the place from where dead body was noticed lying in the river. From one place at a distance of half kilometer, one blood Crl. Appeal No. 888-DB of 2006 [26] stained polythene bag was recovered and from the other side, blood stained earth was noticed. Blood was also noticed on the tractor recovered from the house of accused who was acquitted by the trial Court. Blood was also noticed on the clothes worn by Rupinder Kaur. So participation of Rupinder Kaur is clear from the circumstantial evidence. Something could be said if Hakam Singh had seen the deceased last time in the company of Narinder Singh somewhere else other than in his house. But when last time deceased was seen with the appellants in their house during night and the dead body was recovered with number of injuries with different weapons, then it shows that appellants are the only persons who have committed the crime.
For the reasons recorded above, we are of the opinion that evidence on the file was rightly scrutinised. There is no infirmity or illegality in the impugned judgement.
Thus the appeal is hereby dismissed being devoid of merit.
( JORA SINGH )
JUDGE
May 11, 2010 ( SATISH KUMAR MITTAL )
ritu JUDGE